The opinion of the court was delivered by: James L. Graham United States District Judge
This is an employment discrimination action filed by plaintiff Raymond Gibson, Jr., against his former employer, defendant Shelly Company. Plaintiff, an African-American, alleges that he was terminated by defendant in 2003, 2004, and 2005 on the basis of his color and race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq., 42 U.S.C. §1981, and Ohio Revised Code §4112.02. He also alleges that his terminations in 2004 and 2005 were in retaliation for filing discrimination complaints with the Ohio Civil Rights Commission ("OCRC") and the Equal Employment Opportunity Commission ("EEOC"). The complaint also includes a claim under Ohio law for the negligent and/or intentional infliction of emotional distress.
This matter is before the court on the defendant's motion for summary judgment. The procedure for granting summary judgment is found in Fed. R. Civ. P. 56(c), which provides:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
The evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). Summary judgment will not lie if the dispute about a material fact is genuine, "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, summary judgment is appropriate if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986).
The Sixth Circuit Court of Appeals has recognized that Liberty Lobby, Celotex and Matsushita effected "a decided change in summary judgment practice," ushering in a "new era" in summary judgments. Street v. J. C. Bradford & Co., 886 F.2d 1472, 1476 (6th Cir. 1989). The court in Street identified a number of important principles applicable in new era summary judgment practice. For example, complex cases and cases involving state of mind issues are not necessarily inappropriate for summary judgment. Id. at 1479. In addition, in responding to a summary judgment motion, the nonmoving party "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must 'present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Id. (quoting Liberty Lobby, 477 U.S. at 257). The nonmoving party must adduce more than a scintilla of evidence to overcome the summary judgment motion. Id. It is not sufficient for the nonmoving party to merely "'show that there is some metaphysical doubt as to the material facts.'"
Id. (quoting Matsushita, 475 U.S. at 586). Moreover, "[t]he trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Id. That is, the nonmoving party has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact.
The defendant company engages in the repaving of asphalt roadways in Ohio. The work is seasonal, and runs from approximately May 1st to November 1st. Defendant obtains its labor force, such as laborers and heavy equipment operators, by contacting the various union halls around the state. The unions then send the required number of employees using the union's list of available employees. Plaintiff's union, the International Union of Operating Engineers, Local 18, is a union which sends workers to defendant for employment on defendant's job sites.
Defendant's construction crews work under potentially hazardous circumstances because they work on roadways where motorists frequently pass through at high rates of speed. Each employee is given a copy of defendant's Manual of Safety Practices and Procedures ("the Safety Manual"). Defendant's Ex. C. Violations of the safety policies are classified as "serious" or "other than serious." Ex. C, Section X. "Serious" violations are those where there is a substantial probability that death or serious physical harm could result from the violation and the employee knew or should have known of the hazard. "Other than serious" violations are those which are related to job safety and health but probably would not cause death or serious physical harm.
Two "other than serious" violations equal one "serious" violation. If an employee receives two "serious" violations within one year, his employment will be terminated. The Safety Manual further states that "an employee's supervisor after consultation with the appropriate general supervisor and the Safety Committee has the discretion to discharge the employee after any safety violation." Ex. C., Section X.
In May of 2003, plaintiff was employed by defendant as a roller operator. As a roller operator, plaintiff was responsible for operating a dual drum roller consisting of two large rollers and a seating and control area, equipment which weighed approximately ten tons. Plaintiff's job was to use the roller to smooth the asphalt after another machine placed the asphalt onto the roadway. The roller is approximately sixteen feet long, and due to its weight, it normally takes at least three feet to stop. Defendant's Ex. I, Aff. of Scott Cooperrider.
On May 13, 2003, Mr. Cooperrider observed plaintiff drive the roller off of the new asphalt surface and into the moving traffic lane on three occasions. Drivers passing through the work area had to apply their brakes in order to avoid a collision with the roller. Mr. Cooperrider reported his observations to his supervisor.
On May 14, 2003, Deborah Freeze, a female crew member, reported to Mr. Cooperrider that plaintiff had made sexually-oriented remarks to her and had engaged in other conduct which made her feel uncomfortable working near plaintiff. Mr. Cooperrider conveyed this complaint to Candace Gales, defendant's EEO officer. Ms. Gales came to the work site and interviewed Ms. Freeze. She informed defendant's counsel about the harassment complaints, and counsel stated that due to the safety violations and the harassment complaints, plaintiff should be removed from the job until the investigation was completed. While Ms. Gales' investigation was pending, defendant decided that plaintiff's employment should be terminated due to plaintiff's serious safety violations and the sexual harassment complaints, and plaintiff's employment was terminated on May 16, 2003. Defendant's Ex. F, Gales Aff. and Report of July 25, 2003.
Ms. Gales continued her investigation after plaintiff's termination, and concluded that plaintiff's conduct with Ms. Freeze and another female employee violated the defendant's prohibition against creating a sexually hostile work environment. According to her report, Ms. Freeze reported that plaintiff engaged in several conversations with her which included sexual innuendoes and unwelcome references to her body parts. In his conversations with Ms. Freeze, plaintiff, using off-color and hostile language, referred to a second female employee, stating that he would like to fight this other employee if she could come down off of the equipment. The second female employee reported that plaintiff threatened her with his actions and mannerisms, such as maneuvering his equipment in her direction as if to indicate he was going to run his roller into her equipment.
On May 19, 2003, plaintiff filed a charge of discrimination with the OCRC. Defendant's Ex. J. On February 19, 2004, the OCRC issued a decision finding that no probable cause existed to support the claim that plaintiff was discharged because of his race, and his charge was dismissed. The decision stated that the records before the OCRC showed that defendant terminated plaintiff's employment after receiving complaints from a female employee concerning sexual harassment, and that defendant has terminated Caucasian employees for failing to comply with its policies concerning harassment. The decision further stated that the testimony presented to the OCRC failed to substantiate that plaintiff's race was a factor in his discharge. Defendant's Ex. K. On May 21, 2004, the EEOC issued a right to sue letter. Defendant's Ex. L.
Plaintiff also filed a grievance through his union concerning his termination. When defendant denied the grievance, the matter proceeded to an arbitration hearing on March 18, 2004. In June of 2004, while the arbitration was still pending, the union referred plaintiff to defendant's job site in Zanesville, Ohio. The day after plaintiff started on the job, David Gentil, the job foreman, learned that plaintiff was not eligible to work for defendant due to the pending arbitration. Defendant's Ex. M, Gentil Aff. Mr. Gentil advised plaintiff that he would have to return to the union hall to obtain another assignment.
On August 16, 2004, plaintiff filed a complaint with the OCRC alleging that he was discharged in retaliation for filing a previous charge of discrimination. On April 14, 2005, the OCRC issued a decision finding no probable cause to believe that defendant terminated plaintiff in retaliation for filing the earlier charge, and dismissing his charge. Defendant's Ex. N. The decision stated that there was no evidence to substantiate plaintiff's allegations of retaliation, and specifically noted the statement of William Fadel, counsel for the union, that there was no evidence of race discrimination or retaliation during the arbitration. On July 5, 2005, the EEOC issued a right to sue letter adopting the findings of the OCRC in regard to the charge. Defendant's Ex. O.
On December 4, 2004, Dr. David M. Pincus, the arbitrator in plaintiff's grievance matter, issued his decision. Defendant's Ex. P. The arbitrator concluded that under the terms of the collective bargaining agreement, the defendant was required to show just cause for plaintiff's termination. The arbitrator also noted that the defendant was required to produce evidence "sufficient to convince a reasonable mind of guilt." The arbitrator applied the standard applicable to hostile work environment claims under Title VII in evaluating the sexual harassment claims against plaintiff. He noted that the investigation into the alleged harassment was not completed prior to plaintiff's termination, and concluded that the evidence did not warrant terminating plaintiff for sexual harassment. The arbitrator also concluded that just cause did not exist to terminate plaintiff's employment on the basis of a safety violation because plaintiff had no previous disciplinary record, because the termination notice failed to state that a serious safety violation had occurred, and because Cooperrider merely told plaintiff that entering into the traffic lane was unsafe and inappropriate and did not warn him that if he did it again he would be fired. The arbitrator ordered that plaintiff be reinstated with full back pay, benefits and seniority to May 16, 2003. The arbitrator further ordered that plaintiff's record reflect a reprimand for operating his roller in active traffic, with an admonishment that further conduct of a similar nature would result in more serious discipline. The arbitrator's decision, including the arbitrator's summary of the union's position, makes no mention of any issues concerning race discrimination as a factor in plaintiff's termination.
On May 10, 2005, plaintiff was sent by the union to work on a road paving project for the defendant. Late that afternoon, plaintiff was operating his roller behind a paver machine on which Richie Boring, the job foreman, was riding. Defendant's Ex. Q, Boring Aff. Mr. Boring observed plaintiff drive the roller so that it approached the back end of the paver, slowed down, then picked up speed, coming within inches of the platform on which Mr. Boring was standing. Mr. Boring stated that if the roller had come a few inches closer, He could have been killed. Mr. Boring brought this incident to the attention of a member of the Safety Department. On May 11, 2005, crew members reported to Mr. Boring that plaintiff had driven the roller off of the road several times, and that on one of these occasions, plaintiff had almost driven the roller into a ditch. Mr. Boring notified Safety Director Denny Paul, who dispatched Safety Representative Drake Prouty to the scene. Defendant's Ex. D, Paul Aff.
On May 11-12, 2005, Mr. Prouty conducted an investigation of the alleged safety violations committed by plaintiff. Defendant's Ex. E, Prouty Aff. and Report. Mr. Prouty gathered information from witnesses in regard to the May 10th incident. Matt Shaeffer reported that on the morning of May 10th, plaintiff appeared to be having a hard time keeping awake, and he was observed dozing off between trucks. Mr. Shaeffer stated in his affidavit that plaintiff's roller was six inches away from hitting the paver or a member of the crew. According to his affidavit, Mr. Boring reported that at approximately 3:00 p.m., he observed plaintiff come within three inches of coming over the top of the screed. In an affidavit, Bryan Boyer stated that he observed plaintiff stop close to the back of the paver. Plaintiff shook his head as if to try to wake himself up, and then rolled back the other way. Mr. Boyer stated that if someone had been standing on the right side of the screed and plaintiff had come a few feet closer, someone might have been crushed.
Mr. Prouty also investigated the May 11th incident. Mr. Boring stated in an affidavit that at 7:30 a.m., he observed plaintiff rolling off the side of the road, and he told plaintiff to keep his roller on the road. Bryan Boyer, Brad Turnes, and Jeff Wells reported in their affidavits that at 7:45 a.m., they saw that plaintiff had driven his roller almost completely off the new asphalt on the road, where it was leaning badly into a ditch. Adam Dillon reported in his affidavit that he observed the roller go over the bank, and that plaintiff's head was down and he appeared to be asleep. Matt Shaeffer stated in his affidavit that plaintiff appeared to be having a very hard time staying awake, and that he could not hold a straight line with his roller and was going from side to side rolling down the road. Mr. Prouty also located the spots where the roller had gone off of the paving surface on May 11th, and he took photographs and videotape images of the scene.
Mr. Prouty concluded that plaintiff's inattentiveness and unsafe operation of the roller on May 10th and May 11th constituted multiple serious safety violations because they endangered plaintiff, fellow employees and the public, and created a substantial probability that death or serious physical harm could have resulted. He recommended that plaintiff be terminated. He provided a written report the Safety Committee. The Safety Committee concluded that plaintiff had committed two separate serious safety violations on May 10th and May 11th, and that his employment should be terminated in accordance with the provisions in the Safety Manual. Defendant's Ex. D, Dennis Paul Aff. Plaintiff was terminated on May 12, 2005. Boring Aff., ¶ 8.
Plaintiff filed a complaint with the OCRC on June 23, 2005, alleging that his termination was due to race discrimination and retaliation. On February 2, 2006, the OCRC issued a decision determining that no probable cause existed to believe that defendant engaged in discrimination and dismissing the charge. Defendant's Ex. S. The OCRC concluded that plaintiff was discharged due to repetitive safety violations, specifically, operating the asphalt roller in an unsafe manner, not due to race discrimination or retaliation. The decision noted that defendant had discharged similarly situated Caucasian employees for the same reason, and that the OCRC's investigation failed to reveal a nexus between plaintiff's charges of discrimination and his termination. The EEOC issued a right to sue letter.
Plaintiff also filed a grievance with the union contesting his termination. Plaintiff and the union later entered into a settlement agreement with defendant which resolved this grievance. Defendant's Ex. R. Plaintiff and the union agreed to withdraw the grievance, and the union agreed not to dispatch plaintiff to any of defendant's work sites. Plaintiff agreed to relinquish any rights to re-employment or reinstatement as an employee of the defendant and its affiliates. Plaintiff also agreed that he would not commence any actions in any forum against defendant arising out of or relating to the situation giving rise to the grievance, with the exception of litigating his EEO claims. ...